## REVISED, August 4, 1997

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

___________________

No. 95-10990

ROBERT P. BURCH,

Plaintiff-Appellee,

Cross-Appellant,

versus

COCA-COLA, CO.,

Defendant-Appellant,

Cross-Appellee,

________________________________________________

Appeals from the United States District Court for the

Northern District of Texas

________________________________________________ July 30, 1997

Before GARWOOD, WIENER and DEMOSS, Circuit Judges.

GARWOOD, Circuit Judge:

Plaintiff-appellee, cross-appellant Robert P. Burch (Burch)

brought this suit under the Americans with Disabilities Act (ADA)

asserting that his termination by his employer defendant-appellant,

cross-appellee Coca-Cola Co. was in violation of the ADA. Burch

also advanced Texas law claims of intentiona l infliction of

emotional distress and defamation. The trial court granted CocaCola’s motion for summary judgment on the state law claims and

granted judgment as a matter of law for Coca-Cola on the ADA

intentional discrimination claim. The jury returned a verdict in

favor of Burch on the ADA reasonable accommodation claim. Coca-2

Cola appeals the denial of its motion for judgment as a matter of

law on the reasonable accommodation claim. Burch cross appeals the

judgment as a matter of law on his intentional discrimination claim

and the summary judgment on his defamation claim. We hold that

Coca-Cola was entitled to judgment as a matter of law on both the

intentional discrimination and the reasonable accommodation ADA

claims, and that summary judgment was properly awarded to it on the

defamation claim.

Facts and Proceedings Below

Burch, a former management-level employee of Coca-Cola,

bro ught this suit against his former employer under the ADA.

Burch, a recovering alcoholic, alleged that Coca-Cola t erminated

him because of his alcoholism and, alternatively, fail ed to

accommodate his disability by terminating him instead of permitting

him to return to work after he successfully comp leted a

rehabilitation program.

Coca-Cola recruited Burch in mid-1989. At that time, Burch

was a twenty-four-year vete ran of the General Electric Company

having achieved some success in various man a gement positions.

Burch commenced his employment with Coca-Cola in July 1989 as an

area service manager for the company’s Fountain Division. CocaCola assigns service responsibi lity by geographic area, dividing

the country into several regions. As the area service manager for

the sou thwest region, Burch was responsible for managing CocaCola’s service network for a region that included all of Texas and

stretched from North Dakota to Co lorado and from Mississippi to3

parts of Ariz ona. He directly supervised approximately twenty

Coca-Cola employees.

Burch’s tenure with Coca-Cola was largely without incident and

he was evaluated consistently as a manager who met requirements in

a satisfactory manner. In 1991, Coca-Cola recognized Burch as the

Area Service Manager of the Year. In July 1993, Burch received his

highest overall evaluation score—an “M.E.”——which signified that

Burch “met or exceeded” goals. Burch’s evaluations, however,

reflect that “working relationships” was a “developmental area” for

h im. Burch was never formally reprimanded for improper behavior

prior to his termination in November 1993.

In May 1992, Burch sought, and began receiving, cou nseling

pursuant to Coca-Cola’s Employee Assistance Program (EAP).

Counseling pursuant to Coca-Cola’s EAP is confidential; counselors

are not permitted to notify Coca-Cola of the matters discussed or

the name of the particular employee seeking counseling. Clinical

social worker Cynthia Maddox, an EAP-provided counselor, saw Burch

from May 29, 1992, until August 31, 1992, and again on February 3,

1993. Burch and Maddox primarily discussed relationship problems

Burch was having with his then-current girlfriend. Burch, who has

been married four times, was troubled with his inability to have

lasti ng personal relationships. Although Maddox did not treat

Burch for alcohol abuse, she noted a possible alcohol problem.

On February 3, 1993, Burch requested a psy chiatric referral

from Maddox. Maddox referred Burch to Dr. Joel Holiner, a

psychiatrist in private practice, after concluding that Burch was4

exhibiting “obsessive, compulsive, and paranoid” behavior.

Burch saw Dr. Holiner in February 1993. Dr. Holiner diagnosed

Burch as suffering from “adjustment disorder with depressed mood”

and “probable alcohol abuse.” Dr. Holiner in turn referred Burch

to Dr. Ma rcelo Matamoros, a psychotherapist in private practice,

for additional therapy. Dr. Matamoros began treating Burch several

days after his referral, also in February 1993.

Burch testified that t hroughout this time he was drinking

heavily during his off hours, routinely drinking eight or ten beers

in the evening. Burch also testified that, although he never drank

during working hours, he experienced hangover-like symptoms in the

mornings and attempted to isolat e himself from interaction with

people. Burch would close his office door and complete paperwork

in the morning to avoid contact with other Coca-Cola employees,

explaining that he “wasn’t a morning person.”

Although Burch had been a regular drinker since age fourteen,

he testified at trial that he believed his tenure at Coca-Cola

exacerbated his problems with alcohol. Burch testified that

alcohol was served regularly at Coca-Co la functions and that he

drank regularly with both his peers and supervisors during business

trips. The Coca-Cola “culture,” as characterized by Burch,

amounted to a fraternity of drinkers and contributed to his

alcoholism. Burch testified that at his first Coca-Cola meeting in

1989, his supervisor, Bill Speer, c alled for an afternoon “beer

break” instead of a coffee break. Similarly, Burch claimed that

company-sponsored cocktail hours were common and that managers5

typically frequented bars and cocktail lounges after area service

managers meetings.

Bill Speer was replaced as Burch’s supervisor by Jose Smith,

a man who Burch claimed had an exceed ingly aggressive management

style. Burch experienced no problems with his professional working

relationship with Smith and no testimony was presented concerning

any contact between Burch and Smith outside of their respective

professional responsibilities. Smith’s evaluations of Burch were

unremarkable; Burch was rated as a competent area service manager

with no noted problems of any significance.

Burch’s third supervisor, Perry Cutshall, replaced Smith after

approximately two years in 1991. Burch testified that he “tried

real hard to build a relationship” with Cutshall, regularly

drinking with him in Atlanta after monthly area service managers

meetings. Burch further testified that Cutshall had been

intoxicated on at least one occasion and that drinking after the

meetings was “part of the protocol.” Burch contended at trial that

he informed Cutshall in 1992 that he had sought EAP counseling, but

did not specify that he was concerned about an alcohol problem.

Burch also testified that he drank extensively with his fellow

area service managers George Hawkins and Jerry Allen, although he

contended that he curtailed his social drinki ng after he entered

counseling with Maddox in 1992. Burch testified that he believed

that Hawkins and Allen——whom he considered to be close social

friends of Cutshall——ost racized him in 1992 when he stopped

drinking with them after meetings and on business trips. Burch6

admitted, however, that Cutshall recommended him for two positions

that would have been considered promotions after th e perceived

ostracism began in May 1992.

The only testimony concerning inappropriate conduct on the job

by Burch prior to September 1993 was an incident involving a CocaCola customer ser vice representative, Lajuanna Ajayi, in March

1993. The incident involved a McDonald’s restaurant that had been

without fount ain service for an extended period. After

unsuccessful attempts to reach an intermediate service manager,

Ajayi contacted Burch directly by pager. Although the precise

facts were contested at trial, it was established that Burch, who

was in Toronto, was short with A jayi when he answered the page.

Aja yi complained to her supervisors, who in turn reported the

incident to Cutshall. Cutshall spoke with Burch about the incident

in Atlanta shortly after it occurred. Burch apologized to Ajayi

but no formal reprimand was made by Cutshall.

The events leading up to Burch’s termination began at a

September 22, 1993, area service mangers meeting in Atlanta. The

meeting, at which approximately thirty-five Coca-Cola managers from

around the country were in attendance, was held in a warehouse in

Dunwoody, Georgia, a suburb north of Atlanta. The meeting lasted

all d ay, with presentations from Coca-Cola managers concerning

various procedures and developments affecting the fountain

division. Burch testified that, during the meeting, Allen and

Hawkins made repeated derogatory comments about him. Burch’s

version of the events of the meeting were largely corroborated by1 Brady Lum, a manager affiliated with IOS, testified that he

interpreted the remarks as a compliment.

7 the participants. There was testimony to the effect that joking

and bantering between the managers was routine, alt hough Burch

testified that the disruptions at the meeting were exceptional. At

the time of the September 1993 meeting, Allen was a ssigned to a

position at the customer communications center that was roughly

equivalent to Burch’s status as an area service manager. Hawkins

was Allen’s superior.

After the meeting concluded that afternoon, the participants

went to the Dunwoody Holiday Inn for a reception honoring Max

Trowbridge, who was the outgoing area service manager for New York

and was transferring to Coca-Cola ’s Integrated Operating Systems

(IOS) division. According to Burch, Trowbridge’s transfer was not

an advancement, but rather a result of his poor performance as an

area service manager. The evening event commenced at six o’clock

and began with a cocktail hour in a reception roo m at the hotel.

Burch testified that he had had several drinks, but did not become

intoxicated. Dinner was also served in the reception room.

Burch testified that Trowbridge, while addressing the group,

said that Burch was “a good candidate for” IOS. Burch took offense

a t this comment, which he considered to be an attack on his

competenc e. 1 Burch further testified that Hawkins rejoined with

“Perry would enjoy that,” referring to Burch’s supervisor Cutshall.

The room laughed at the remarks and Burch turned to face the table2 There was testimony to the effect that Bilbo was among the

group during the afternoon meeting that had made antagonistic

comments toward Burch. In September 1993, she was assigned to the

customer communications center and reported directly to Allen. The

jury heard testimony that both at the time of the incident and

during the trial Bilbo had a romantic relationship with Cutshall.

3 Bilbo testified that she informed Cutshall as the dinner was

breaking up. Cutshall testified that he spoke with Allen and

Hawkins to get their versions later that evening. Cutshall spoke

with Lum about the incident the next day, September 23, 1993. The

evening of September 22, 1993, Cutshall also learned of an earlier

incide nt between Burch and another Coca-Cola manager, James

Britton.

8 at which Allen, Hawkins, and Cynthia Bilbo 2 were sitting. Because

Hawkins’s back was toward Burch, Burch pointed at Allen and mouthed

“fuck you” twice and “get off my ass.” Burch, as he admitted, at

the same time also motioned with his head for Allen to meet him

outside the room. Burch testified that, throughout the exchange,

Allen kept laughing. Burch

—— who is some 6'5" tall, weighed about

223 pounds, and biked some 100 to 200 miles a week

— — admitted th a t

he had then been “red in the face” and “very angry,” but stated

that he never left his ch air and never intended to engage in any

physically violent behavior. After the episode, a manager seated

at Burch’s table, Mik e Memoli, told Burch to calm down. Burch

remained seated at his table for the remainder of the dinner

without incident.

Burch testified that Hawkins apologized to hi m after dinner

for the remarks he had made throughout the day at the meeting and

at the di nner. Cutshall was not aware that the episode had

occurred until after the dinner was over. 3 Cutshall and Burch did

not speak about the incident at the following day’s meeting. Burch9

returned to Dallas the evening of September 23, 1993.

Upon his return to Dallas, Burch attempted to contact Dr.

Matamoros, who was out of town. Burch spoke with the counselor on

duty who recommended consultation wit h a psychiatrist because of

the severity of Burch’s depression and described alcohol abuse.

The following afternoon, Septem ber 24, 1993, Burch learned

from John Barker, an area service manager from St. Louis who had

also attended the dinner in Atlanta, that the Coca-C ola human

resources department was inves t igating Burch’s conduct at the

dinner. Burch testified that he attempted unsuccessfully to

contact Cutshall on Friday to discuss the incident.

On Saturday, September 25, 1993, Burch spoke with Cutshall,

who informed him of the pending hum an resources investigation.

Cutshall directed Burch to discuss his version of the incident with

Frank Tola, who was to lead the investigation. Burch told Cutshall

for the first time that he was experiencing problems with alcohol

abuse and that he intended to undergo treatment at Charter Hospital

in Dallas. Burch testified that he spoke with several managers on

Saturday who had attended the Atlanta meeting and dinner concerning

the incident and its severity.

On Sunday, September 26, 1993, Burch was admitted voluntarily

to Charter Hospital. Dr. Edgar Nace was Burch’s treating

physician, wh o admitted Burch on an in-patient basis. Burch

remained at Charter Hospital until October 6, 1993, at which point

he became a day patient. Burch then contacted Cutshall and

requested to return to work on a part-time basis. Cutshall10

inf ormed Burch that he could not return as he was on suspension

pending completion of the human resource s investigation. Burch

r emained on full salary throughout his treatment (which was paid

for by Coca-Cola’s benefit plan) and until his termination.

On October 27, 1993, Burch sent a letter to Tola requesting to

“return to work immediately.” Letters from Dr. Nace and Dr.

Matamoros were also then forwarded t o Tola attesting to Burch’s

readiness to return to work at Coca-Cola. In a memorandum dated

October 27, 1993, Tola recommended that Burch be discharged for his

behavior at the dinner. Tola’s recommendation was supported by six

Coca-Cola managers.

Tola asked Burch to return to his office in Dallas on November

4, 199 3. Upon his arrival he was met by Tola and Cutshall, who

informed Burch that he was terminated from his employment with

Coca-Cola for “performance issues.” Burch was asked to return all

company property and was escorted off the premises by an off-duty

police officer.

The following Monday, Burch went to the offices of Drake, Beam

& Morin, a placement firm used by Coca- Cola. During his visit,

Burch testified that he was met by an employee who wanted

reassuran ces that Burch would not behave improperly while in the

Drake, Beam & Morin offices. Burch further testified that the

questions were a result of a facsimile received from Coca-Cola

stating that Burch had been terminated for “violent and threatening

behavior.” Burch left the offices.

Since his termination from Coca-Cola, Burch has held two11

subseq uent managerial jobs. The first, a $115,000 a year

management position with Bell Packaging in Michigan, lasted from

April to September 1994, when he was terminated for a conflicting

management style. The second, a $60,000 a year management position

with Montgomery Ward in D allas, ended after several months when

Burch resigned in lieu of termination.

B urch filed suit in state court in Dallas County, Texas,

alleging that he had been terminated in violation of the ADA and

asserting state law claims of defamation and intentional infliction

of emotional distress. Coca-Cola removed the action to the United

States District Court for the Nor thern District of Texas (Dallas

Division). Pursuant to 28 U.S.C. § 636(c), the parties consented

to trial before a magistrate judge.

Coca-Cola filed a motion for summary judgment on all claims.

After Burch’s res ponse was filed, the magistrate judge issued a

memorandum order granting summary judgment in favor of Coca-Cola on

the Texas law defamation and intentional infliction of em otional

distress claims and denying summary judgment on Burch’s ADA claims.

The case was tried before a jury in Dallas. At the close of

Burch’s evidence, Coca-Cola made a motion for judgment as a matter

of law pur suant to Rule 50. The magistrate judge granted the

motion on the ADA intentional discrimination claim but denied the

motion on the ADA reasonable accommodation claim. Coca-Cola’s

renewed motion (on the reasonable accommodation claim) at the close

of all the evidence was denied.

The jury returned a verdict in favor of Burch, finding that12

Coca-Cola terminated Burch in violation of the ADA. The jury

awarded Burch $109,000 in backpay, $700,000 in front pay, $300,000

in compensatory damages, and $6,000,000 in punitive damages. CocaCola moved for judgment as a mater of law or, in the alternative,

for a new trial.

The magistrate judge denied Coc a-Cola’s motion and entered

judgment for Burch. The magistrate judge reduced the front pay

award to $294,777 (representing the discounted value of five years

front pay), reduced the punitive damage award to zero, and awarded

B urch attorneys’ fees of $208,072. Coca-Cola renewed its motion

for judgment as a matter of law or a new trial. The magistrate

judge denied Coca-Cola’s motion.

Coca-Cola has appealed. It asserts that the magistrate judge

erred by denying its motion for judgment as a matter of law on the

ADA reasonable accommodation claim, by denying its motion for a new

trial, and by awarding an excessive amount of compensatory damages.

Burch has cross appealed. He asserts that the magistrate judge

erred by granti ng Coca-Cola summary judgment on his Texas law

defamation claim and by granting Coca-Cola’s motion for judgment as

a matter of law on his ADA intentional discrimination claim.

Discussion

Both pa rties appeal from the magistrate judge’s rulings on

Coca-Cola’s Rule 50 motions for judgment as a matter of law. This

Court reviews de novo rulings on Rule 50(a) and (b) motions, using

the same standards as those to be employed by the trial court. R TC

v. Cramer , 6 F.3d 1102, 1109 (5th Cir. 1993).13

After a party has been fully heard on an issue, a trial court

may grant an opposing party’s motion for judgment as a matter of

law if “there is no legally sufficient evidentiary basis for a

reasonable jury to find for that party on that issue.” Fed. R.

Civ. P. 50(a)(1). In such circumstances, we view the entire trial

record in the light most favorable to the non-movant, drawing

reasonable factual inferences in its favor. C onkling v. Turner

, 18

F.3d 1285, 13 00 (5th Cir. 1994). “‘The ‘decision to grant a

directed verdict

. . . is not a matter of discretion, but a

conclusion of law based upon a finding that there is insufficient

evidence to create a fact question for the jury.’” Id. at 1300-01

(quoting In re Letterman Bros. Energy Sec. Litig.

, 799 F.2d 967,

972 (5th Cir. 1986), cert. denied

, 107 S.Ct. 1373 (1987)). “If the

facts and inferences point so strongly and overwhelmingly in favor

of the moving party

. . . that reasonable jurors could not have

arrived at a contrary verdict, then we will conclude that the

motion should have been granted.” C ramer

, 6 F.3d at 1109 (5th Cir.

1992) (citing Boeing v. Shipman

, 411 F.2d 365, 374 (5th Cir. 1969)

(en banc)).

I. Reasonable Accommodation

“‘The ADA is a federal antidiscrimination statute designed to

remove barriers which prevent qualified individuals with

disabilities from enjoying the same employment opportunities that

are available to persons without disabilities.’” Taylor v.

Principal Fin. Group, Inc.

, 93 F.3d 155, 161 (5th Cir.) (quoting 2914

C.F.R. § 1630, App. (1995)), cert. denied

, 117 S.Ct. 586 (1996).

In order to achieve this goal, the ADA prohibits——a s a form of

discrimination——an employer’s failure to make “reasonable

accommodations to the known physical or mental limitations of an

otherwise qualified individual with a disabilit y who is an

applicant or employee, unless [an employer] c an demonstrate that

the accommodation would impose an undue hardship.” 42 U.S.C. §

12112(b)(5)(A) (1995).

The ADA, its implementing regulations, and the EEOC’s

interpretive guidance make clear that an employer’s obligation to

provide a “reasonable accommodation,” when triggered, contemplates

changes to an employer’s procedu res, facilities, or performance

requ irements that will permit a qualified individual with a

disability to perform the essential functions of his or her job.

In all cases a reasonable accommodation will involve a change in

the status quo, for it is the status quo that presents the very

obstacle that the ADA’s reasonable accommodation provision attempts

to address. The ADA provides:

“The term ‘reasonable accommodation’ may include--

(A) making existing facilities used by employees

readily accessible to and usabl e by individuals with

disabilities; and

(B) job restructuring, part-time or modified work

schedules, reassignment to a vacant position, acquisition

or modification of equipment or devices, appropriate

adjustment or modifications of examinations, training

materials or policies, the provision of qualified readers

or interpreters, and other similar accommodations for

individuals with disabilities.” 42 U.S.C. § 12111(9).

In addition to repeating the examples of reasonable accommodations

set forth in the statute, the regulations define the term as15

“[m]odifications or adjustments to the work environment, or to the

manner or circumstances under which the position held or desired is

c ustomarily performed, that enable a qualified individual with a

disability to perform the essential f unctions of that position.”

29 C.F.R. § 1630.2( o )(1)(ii) (1996). The EEOC’s interpretive

guidance also emphasizes the protean nature of the employer’s

obligation. S ee 29 C.F.R. § 1630, A pp. (1996) (“In general, an

accommodation is any change in the work environment or in the way

things are customarily done th at enables an individual with a

disability to enjoy equal employment opportunities.”).

We conclude that this case was improperly tried on a

reasonable accommodation theory. First, Burch failed to establish

that his alcoholism interfered in any way with his ability to

perform the essential functions of an area service manager for

Coca-Cola without reasonable accommodation or, for that matter,

that his alcoholism ever substantially impaired a ny major life

activity. Second, Burch failed to establish that he ever requested

any modification or adjustment to his job as an area service

manager with Coca-Cola. A wrongful termination claim under the ADA

is not properly analyzed under a reas onable accommodation theory

unless an employer is s hown to have terminated a qualified

individual with a disability in order to avoid accommodating that

employee’s impairments at the workplace. Accordingly, an employee

who r equests only the opportunity to return to an unmodified,

previously-held position fails to state a cognizable claim under 42

U.S.C. § 12112(b)(5).4 Burch argues that “to be protected under the ADA, an

individual need only show that a major life activity is

substantially limited; there is no requirement that the individual

also show that he is limited in the activity of working as well.”

This is true insofar as Burch may assert a claim for intentional

discrimination under t he ADA. To assert a discrimination claim

under the reasonable accommodation provision, however, Burch must

demonstrate that a substantially limiting impairment somehow

affected his ability to perform his job. Without such a showing,

there would be nothing for an employer to accommodate.

16 A. Burch’s Limitation

“[T]he ADA requires employers to reasonably accommodate

limitations, not disabilities.” Taylor , 93 F.3d at 164. This is

a cri tical distinction, because the existence vel non of a

disability or impairment is material to a reasonable accommodation

claim only insofar as it limits an employee’s ability to perform

his or her job. 4 Id. (“Thus, while a given disability may limit

one employee (and therefore necessitate a reasonable

accommodation), it may not lim it another.”); see also Beck v.

University of Wisc. Bd. of Regents , 75 F.3d 1130, 1135 (7th Cir.

1996) (“It is plain enough what ‘accommodation’ means. The

employer must be willing to consider making changes in its ordinary

work rules, facilities, terms, and conditions in order to enable a

disabled individual to work.”) (quotation omitted). Accordingly,

an impairment must be substantially limiting at the time of the

requested accommodation

. S ee Pritchard v. The Southern Co. Servs.

,

92 F.3d 1130, 1133 (11th Cir. 1996); Muller v. Automobile Club of

S. Ca. , 897 F.Supp. 1289, 1295-96 (S.D. Ca. 1995).

The ADA define s “qualified individual with a disability” as

“an individual with a disability who, with or without reasonable5

“(h) Physical or mental impairment means:

(1) Any physiological disorder, or condition,

cosmetic disfigurement, or anatomical loss affecting one

or mo re of the following body systems: neurological,

musculoskeletal, special sense or gans, respiratory

(including speech organs), cardiovascular, reproductive,

digestive, genito-urinary, hemic and lymphatic, skin, and

endocrine; or

(2) Any mental or psychologic al disorder, such as

mental retardation, organic brain syndrome, emotional or

mental illness, and specific learning disabilities.” 29

C.F.R. §1630.2(h) (1996).

6

“(j) Substantially limits --(1) The term substantially

limits means:

(i) Unable to perform a major life activity that the

average person in the general population can perform; or (ii) Significantly restricted as to the condition,

manner or duration under which an individual can perform

a particular major life activity as compared to the

condition, manner , or duration under which the average

person in the general population can perform that same

major life activity.” Id. § 1630.2(j).

7

“(i) Major Life Activities means functions such as caring

for oneself, performing manual tasks, walking, seeing,

hearing, speaking, breathing, learning, and working.”

Id. § 1630.2(i).

17 accomm odation, can perform the essential functions of the

employment position that such individual holds or desires.” 42

U.S.C. § 12111(8). The ADA further defines an actionable

disability, in relevant part, as “a physical or mental impairment

that substantially limits one or more of the major life activities

of such individual.” I d. § 12102(2)(A). “Physical or mental

impairment,” 5 “substantially limits,” 6 and “major life activities” 7

are all defined in the applicable regulations.

Coca-Cola contends that Burch failed to establish that he was

a qualified individual with a disability as required by the ADA.8 Dr. Nace agreed that by mid-October 1993 Burch would have

been “a better employee than he was before,” and “a more productive

and impr oved employee.” On cross-examination, Dr. Nace

acknowledged that Burch’s status as a recovering alcoholic did not

affect his ability to walk, sit, hear, work, or participate in any

“usual activities.”

18 In response, Burch makes a number of arguments in support of his

assertion that his alcoholism made him a “qualified individual with

a disability.” The first, briefly stated, is that Dr. Nace,

Burch’s expert, said it did. The relevant testimony of Dr. Nace is

as follows:

“Q. I want to read to you the definition of disability

under the Americans with Disabilities Act. It says, ‘The

termdisability means with respect to an individual a

physical or mental impairment that substantially limits

one or more of the major life activities of such

ind i vidual.’ Using that definition is an alcoholic

disabled?

A. Yes.

Q. In your opinion does Bob fit the definition of

disabled under he [sic] Americans with Disabilities Act?

A. Yes, I think so.”

Dr. Nace’s testimony, even as Burch’s treating physician, sheds no

light on the individualized inquiry required by the ADA. Dr. Nace

testified only in general terms about alcoholics as a class. The

only testimony given by Dr. Nace concerning Burch individually

concerned Burch’s ability to function without limitation. 8 As the

EEOC’s interpretive guidance makes plain, the ADA does not attempt

to set forth a laundry list of impairments that are disabilities.

See 29 C.F.R. § 1630, App. (1996) (“The determination of whether an

individual has a disability is not necessarily based on the name or

diagnosis of the impairment the person has, but rather on the

effec t of that impairment on the life of the individual. Some19

impairments may be disabling for particular individuals but not for

others

. . . .”). Unlike HIV infection, the EEOC has not attempted

t o classify alcoholism as a per se disability, and we decline to

adopt such a questionable position. S ee id. ; Foreman v. The

Babcock & Wilcox Co., No. 96-60510 (5th Cir. July 10,

1997)(employee’s heart condition with surgically implanted

pacemaker did not substantially limit the major life activity of

working); Robinson v. Global Marine Drilling Co. , 101 F.3d 35, 37

(5th Cir. 1996) (asbestosis su f ferer who experienced episodic

shortness of breath due to a reduced lung capacity was not

substantially limited in the major life activity of breath ing);

Oswalt v. Sara Lee Corp.

, 74 F.3d 91, 92 (5th Cir. 1996) (“‘[h]igh

blood pressure, alone, without any evidence that it substantially

affects one or more major life activities, is insufficient to bring

an employee within the protection of the ADA’”); Dutcher v. Ingalls

Shipbuilding

, 53 F.3d 723, 726 & n.11 (5th Cir. 1995) (evidence of

a partially crippled arm insufficient to meet the standard of

substantially limiting a majo r life activity); s ee also McKay v.

Toyota Motor Mfrg., USA, Inc., 110 F.3d 369, 372 (6th Cir.

1997)(diagnosed “carpal tunnel syndrome” did not substantially

limit the major life activity of working); Soileau v. Guilford of

Maine, Inc.

, 105 F.3d 12, 15 (1st Cir. 1997) (employee’s dysthymia,

a chronic depressive disorder, did not subs tantially limit the

assumed major life activity of “get[ting] along with others”).

Second, Burch makes reference to his testimony that his

ability to walk, talk, think, and sleep were affected when he drank9 This is not to say that an alcoholic can never demonstrate a

substantially limiting impairment. But where, as here, an

alcoholic’s only proffered impairments are the primary result of

temporary inebriation, such proof is insufficient. Burch offered

no testimony that his alcoholism-induced inebriation permanently

altered his gait, his ability to speak properly, his memory when

sober, or produced long-term insomnia. In fact, when Burch began

treatment for his alcoholism in late September 1993, he reported to

Charter Hospital that he had been bicycling recreationally between

100 and 200 miles a week. Burch concedes that, prior to his paid

leave to undergo treatment, his work was unaffected by his

alcoholism. Burch testified that he never drank during working

hours.

20 too much. Burch also testified that he had hangovers in the

morning that affected his memory. That Burch’s inebriation was

temporarily incapacitating is not determinative. Burch produced no

evidence that the effects of his alcoholism-induced inebriation

were qu a litatively different than those achieved by an

overindulging soc ial drinker: in both situations, the natural

result of overindulgence is the temp orary impairment of senses,

dulled reactions, and the prospect of a restless sleep followed by

an unpleasant morning. Although Burch’s alcoholism assuredly

affected how he lived and worked, “far more is required to trigger

coverage under § 12102(2)(A).” Ellison v. Software Spectrum , 85

F.3d 187, 191 (5th Cir. 1996). Burch’s testimony that his

inebriation was frequent does not make it a permanent impairment.

Permanency, not frequency, is the touchston e of a substantially

limiting impairme nt. Although Burch’s alcoholism may have been

permanent, he offered no evidence that he suffered from any

substantially limiting impairment of any significant duration. 9 We

have previously rejected attempts to transform temporary

afflictions into qualifyi ng disabilities. S ee Rogers v.21

International Marine Terminals, Inc.

, 87 F.3d 755, 759 (5 th Cir.

1996); Rakestraw v. Carpenter Co.

, 898 F. Supp. 386, 390 (N.D.

Miss. 1995); see also Soileau v. Guilford of Maine, Inc

., 105 F.3d

12, 16 (1st Cir. 1997); Sanders v. Arneson Products, Inc

., 91 F.3d

1351, 1354 (9th Cir. 1996), cert. denied

, 117 S.Ct. 1247 (1997);

29 C.F.R. § 1630.2(j), App. (1996) (“[T]emporary, non-chronic

impairments of short duration, with little or no long term or

permanent impact, are usually not disabilities.”).

Third, Burch argues that “[t]he fact that Burch ultimately had

to be hospitalized establishes that his alcoholism substantia lly

limited his major life activities .” For this proposition, Burch

relies upon School Bd. of Nassau County v. Arline

, 107 S.Ct. 1123,

1127 (1987), a Rehabilitation Act case involving a claimant

suffering with an acute form of tuberculosis so severe that it

required hospitalization. In A rline

, the Supreme Court, describing

the effect the plaintiff’ s tuberculosis had on her respiratory

system, observed, “[t]his impairment was serious enough to require

hospitalization, a fact more than sufficient to establish that one

or more of her major life activities were substantially limited by

her impairment.” I d. (noting that her hospitalization established

a record of impairment under the Rehabilitation Act).

The quoted language from Arline cannot be construed to obviate

the requirement, explicit in the ADA and its implementing

regulations, that purported conditi ons be examined to ascertain

whether a specific condition substantially limited a major life

a ctivity. The ADA requires an individualized inquiry beyond the22

mere existence of a hospital stay. Although the Court in Arline

noted that the plaintiff’s hospitalization established a record of

impairment, the defendant had conceded that her acute tuberculosis

had been substantially limiting. Indeed, the defendant’s position

in Arline was not that the plaintiff was not “handicapped,” but

rather that her contagious disease——tuberculosis——was a threat to

the health of others (and therefore precluded liabili ty for

termination on that basis). To accept Burch’s reading would work

a presumption that any condition requiring temporary

hospitalization is disabling——a presumption that runs counter to

the very goal of the ADA. S ee Ellison

, 85 F.3d at 190-91

(plaintiff who worked a modified schedule during radiation

treatment for breast cancer had failed to establish a substantially

limiting impairment under the ADA); Demming v. Housing and Redev.

Auth.

, 66 F.3d 950, 955 (8th Cir. 1995) (rejecting plaintiff’s

position that, under Arline , proof of hospitalization for thyroid

c ancer established a disability under the Rehabilitation Act);

Sanders

, 91 F.3d at 1354 (psychological impairment re quiring

treatment and precluding work for three and a half months “not of

sufficient duration to fall within the protections of the ADA as a

disability”); Taylor v. Unite d States Postal Service , 946 F.2d

1214, 1217 (6th Cir. 1991) ( Arline should not be read “as

establishing the nonsensical proposition that any hospital stay is

sufficient to evidence a ‘record of impairment’” under the

Rehabilitation Act); Coghlin v. H.J. Heinz Co. , 851 F. Supp. 808,

813 (N.D. Tex. 1994) ( Arline ’s analysis did not address the23

“substantially-limits” portion of disability under the ADA).

Fourth, Burch contends that his impairment must b e viewed

without regard to “mitigating measures.” The EEOC’s interpretive

guidance does state that “[t]he existence of an impairment is to be

determined without regard to mitigating measures such as medicines,

or assistive or prosthetic devices.” 29 C.F.R. § 1630.2(h), App.

(1996). Even assuming, however, that Burch’s treatment for

alcoholism was the equivalent to a diabetic’s insulin dose——a

proposition neither supported by the record nor judicially

noticeable——we note that Burch failed to establish that his

untreated alcoholism substantially limited any major life activity

or th at he r equired any continuing treatment whatsoever after he

completed the rehabilitation program at Charter. C f. Harris v. H&W

Contracting Co.

, 102 F.3d 516, 522-23 (11th Cir. 1996) (finding

material issue of fact existed as to whether employee with Grave’s

disease was substantially limited where there was evid ence that

prior overdosage of thyroid medication produced “panic attack” and

that withdrawal of medication would cause coma and death).

Burch admonishes the Court that if his successful completion

of rehabilitation precludes him from recovery under the ADA we will

produce “th e anomalous result of affording protection for

alcoholics who continue to drink, but not for those who are

recovering.” Not so. It is not difficult to imagine the myriad

types of health problems, both physical and mental, that continue

to plague even recovering alcoholics. Under different

circumstances——and additional evidentiary support——an alcoholic may10 Burch discerns in the ADA’s legislative history a

congressional intent to assist recovering alcoholics. Burch draws

this conclusion principally from Congress’s decision not to exempt

alcoholics in 42 U.S.C. § 12114 as it had current users of illegal

drugs. The decision not to exclude alcoholics peremptorily,

however, is far from a decision to confer disabled status without

the inquiry prescribed by the ADA. Congress has been especially

reluctant to confer privileges on the basis of alcoholic status

alone. See, e.g. , Contract with America Advancement Act of 1996,

Pub. L. No. 104-121, § 105, 110 Stat. 847, 852-55 (“An individual

shall not be considered to be disabled for purposes of this title

if alcoholism or drug addiction would (but for this subparagraph)

be a contributing factor material to the Commissioner’s

determination that the individual is di sabled.”) (denying Social

Security disability benefits to alcoholics). Wherever Congress’s

sympathies lie, we find no evidence in the legislative history or

elsewhere of a congressionally conferred exemption for alcoholics

from the rigors of the scheme set forth in the ADA.

24establish the need for reasonable accommodation of an alcoholisminduced impairment. Burch simply has not done so; there is

insufficient evidence in the record to support a jury finding that

Burch ever suffered a substantial impairment of a major life

activity, much less that he did so on or after October 27, 1993.

Although Burch’s alcoholism would not necessarily preclude him from

asserting reasonable accommodation rights under the ADA, it plainly

does not excuse his failure to meet the statutory prerequisites. 10

B. Requested Accommodation

In addition to Burch’s failure to establish that he was a

qualified individual with a disab ility, his failure to request a

cognizable, reasonable accommodation also demonstrates the

magistrate judge’s error in submitting this case to the jury on a

reasonable accommodation theory.

As set forth above, the ADA contemplat es modifications or

adjustments to an employer’s procedures, facilities, or, perhaps,11 Even had Burch tried this case on the theory that Coca-Cola’s

refusal to permit him to return to work on a part-time basis on

October 6, 1993, was a failure to pro vide a reasonable

accommodation, which he did not, we have substantial doubt that

Coca-Cola’s decision to retain him on suspension with full pay was

not a reasonable accommodat ion. Other courts have found that

unpaid leave granted to an employee undergoing treatment can be a

reasonable accommodation, see Myers v. Hose

, 50 F.3d 278, 283 (4th

Cir. 1995) (“Requiring paid leave in excess of an employee’s

scheduled amount would unjustifiably upset the employer’s settled

budgetary expectations, and thus cannot be considered a reasonable

accommodation.”), and that in some circumstances an employer may

have no obligation to provide even unpaid leave, see Hudson v. MCI

25 perfor mance requirements to enable a disabled employee to

accomplish his or her job. Burch never requested Coca-Cola to

change any aspect of his job. To the contrary, Burch has contended

consistently that he required no job concessions——that he was in

every way fit to return to precisely the same position, the same

responsibilities, the same schedule, the same supervisor, and even

the same office that he had prior to his treatment at Charter.

Burch contends that Coca-Cola refused to provide him a

reasona ble accommodation on two separate occasions. First, he

argues, Coca-Cola “refused Burch’s request that he return to work

part-time while he was still in treatment.” We may dispose of this

first contention of Burch’s with dispatch. Although the jury was

instructed as to an employer’s reasonable accommodation obligations

under the ADA, it was asked only: “Was Plaintiff Robert Burch

terminated by Defendant The Coca-Cola Company in violation of the

ADA?” The reasonableness of Coca-Cola’s accommodation to Burch on

October 6, 1993,——to retain him on full salary while he completed

his treatment at Charter rather than take him back on a part-time

b asis——was not an issue that was before the jury. 1 1 There is noCommunications , 87 F.3d 1167, 1169 (10th Cir. 1996) (holding that

unpaid leave of in definite duration is not a reasonable

a ccommodation). Certainly, Coca-Cola was not forced to create a

part-time position if the essential functions of the area service

manager’s position demanded a full-time manager. T urco v. Hoechst

Celanese Corp.

, 101 F.3d 1090, 1094 (5th Cir. 1996); D augherty v. City of El Paso

, 56 F.3d 695, 700 (5th Cir. 1995) (citing Chiari v. City of League Ci ty , 920 F.2d 311, 318 (5th Cir. 1991)), c ert.

denied , 116 S.Ct. 1263 (1996).

Burch’s citation of Rizzo v. Children’s Learning Ctrs., Inc.

, 84 F.3d 758, 765 (5th Cir. 1996), does not support his position.

Rizzo

, a summary judgment case in which this Cou rt held that an

emplo y er’s decision to lower a concededly disabled employee’s

hours, to require her to work a “split shift,” and to change her

position from bus driver to cook produced a fact issue as to

whether there had been an adverse employment action, left

unresolved whether the changes were an adverse employment action or were merely efforts to accommodate the employee’s disability.

26 record evidence that Coca-Cola terminated Burch because h e could

not return to work earlier than October 27, 1993, when he requested

to return to work on a full-time basis. And, no evidence was

introduced to support any damage award on a claim o f failure to

allow return to part-time work while still in treatment.

This Court will not consider on appeal a claim not submitted

to the district court. “A party has presented an issue in the

trial court if that party has raised it in either the pleadings or

the pretrial order, or if the parties have tried the issue by

consent.” Portis v. First Nat’l Bank of New Albany , 34 F.3d 325,

331 (5th Cir. 1994). Burch’s First Amended Complaint, upon which

his case was tried, complains only of his ADA wrongful termination

claim (in addition to his Texas law defamation and intentional

infliction of emotion distress claims). The record before us

contains no pretrial order. The jury was not charged concerning

Coca-Cola’s pretermination refusal to permit Burch to return to12 Burch does not complain that Coca-Cola ever denied a

prospective request for a leave of absence. We therefore have no

need to address whether an employer would be required, in certain

circumstances, to offer a leave of absence to an employee whose

alcoholism qualified as a disability under the ADA.

27 work on a par t-time basis, and there was no request for such a

change nor objection to its omission. There is nothing in the

trial record to suggest

—— nor does Burch contend

—— that this separate

cla im was tried by consent as contemplated by Rule 15(b). S ee

Moody v. FMC Corp

. , 995 F.2d 63, 65-66 (5th Cir. 1993). In sum,

Burch abandoned any such claim by not properl y raising it in the

district court.

Burch’s second argument is that Coca-Cola “refused his request

that he be allowed to come back to work full-time.” As stated,

this claim was not properly analyzed as a failure to accommodate.

Burch did not request an accommodation, he requested to return to

his position as he left it when he entered treatment on September

26, 1993. He sought no changes to his position and desired nothing

more than the ability to resume his career where he had left it.

It is undisputed that throughout his absence he had remained on

full salary as a Coca-Cola employee. 12 Coca-Cola’s employee benefit

plan paid for his treatment. Burch argues that the jury was free

to reject Coca-Cola’s explanation that Burch was terminated for his

i mproper behavior at the managers meeting, but whether Coca-Cola

would have fired a nonalcoholic for the same behavior is relevant

only to an intentional discrimination claim. Here, Burch requested

only Coca-Cola’s grace——a request that Coca-C ola refrain from an

employment action that, absent conflict with the ADA’s intentional13 Burch was an at-will employee. Apart from the ADA’s

proscription of discrimination, Coca-Cola was free under Texas law

to terminate Burch “for a good reason, a bad reason, or no reason

at all.” F igueroa v. West

, 902 S.W.2d 701, 704 (Tex. App.--El Paso

1995, no writ); see also Schroeder v. Texas Iron Works, Inc. , 813

S.W.2d 483, 489 (Tex. 1991); Jones v. Legal Copy, Inc.

, 846 S.W.2d

922, 925 (Tex. App.--Houston 1993, no writ).

14 Coca-Cola cites a number of cases for the proposition that

employers are under no obligation to accommodate misconduct that is

the product of an employee’s alcoholism. These cases are a correct

interpretation of section 12114(c)(4), which permits employers to

hold alcoholic employees to the same standard of conduct as nonalcoholic employees. Section 12114(c)(4), unlike the pre-1992

Rehabilitation Act, does not require employers to excuse violations

of uniformly-applied standards of conduct by offering an alcoholic

employee a “firm choice” between treatment and discipline. C ompare

Fuller v. Frank

, 916 F.2d 558, 562 (9th Cir. 1990) (discussing

firm-choice rule); Rodgers v. Lehman , 869 F.2d 253, 259 (4th Cir.

28 discrimination provision, Coca-Cola was left fre e to undertake. 1 3

The determination of whether Coca-Cola was required to refrain from

terminating Burch because its true reasons for dismissal were

discriminatory is at the heart of the subjective inquiry required

to establish intentional discrimination under the ADA. Burch

cannot characterize his intentional discrimination claim as a

“request for accommodation” in order to take advantage of the

objective inquiry unde r section 12112(b)(5). A qualified

individual with a disability who asks only to return to work——but

who is instead fired by his employer——is entitled (on a proper

evidentiary showing) to have the jury consider whether the employer

acted with discriminatory intent, not whether permitt ing the

employee to return to his old (unmodified) job would have been

reasonable. As Burch had advanced no cognizab le request for

accommodation at the time of his termination, Coca-Cola’s decision

to terminate him was not actionable under section 121 12(b)(5). 1 41989) (same), with Johnson v. Babbitt , EEOC No. 03940100, 1996 WL

159072 (EEOC Mar. 28, 1996) (finding 1992 amendment to

Rehabilitation Act, 29 U.S.C. § 791(g), which incorporated section

12114(c)(4), eliminated the requirement that an employer provide a

“firm choice” as an accommodation). But cf. Office of the Senate

Sergeant at Arms v. Office of Senate Fair Employment Practice , 95

F.3d 1102 (Fed. Cir. 1996) (finding that amended Rehabilitation Act

obliged employer to provide leave for treatment to a disabled

alcoholic as a reasonable accommodation, but did not require a “retroactive accommodation” by excusing misconduct).

In the cases cited by Coca-Cola, the employer’s reason for

termination was either uncontested or unrefuted by the employee.

See, e.g., Siefkin v. Village of Arlington Hgts

., 65 F.3d 664 (7th

Cir. 1995) (granting summary judgment in ADA case in which the

plaintiff-employee conceded termination for failing to monitor and

control his diabetes, causing an auto accident); Ma ddox v.

University of Tenn

., 62 F.3d 843, 848 (6th Cir. 1995) (granting

employer’s summary judgment motion where alcoholic football coach

failed to rebut employer’s evidence that it terminated him for

misconduct); Little v. FBI

, 1 F.3d 255, 259 (4th Cir. 1993)

(affirming dimsissal of alcoholic FBI agent’s ADA claim where “it

plainly appears that the appellant was fired because of his

misconduct [being drunk on duty], not because of his alcoholism”);

Rodgers v. County of Yolo Sheriff’s Dep’t , 889 F.Supp. 1284, 1291

(E.D. Ca. 1995) (granting employer’s summ ary judgment motion in

Rehabilitation Act case involving an alcoholic police officer where

evidence was “unrefuted and demonstrates that plaintiff[’s]

termination was based on poor performance”); see also Collings v.

Longview Fibre Co

., 63 F.3d 828, 831-32 (9th Cir. 1995) (affirming

g rant of summary judgment for employer of drug abusing employees

where employees failed to rebut employer’s contention that they

were terminated for drug-related misconduct; specifically, no showing that other employees had been treated differently for

engaging i n similar conduct and no showing that employer knew

employees were former drug abusers), cert. denied

, 116 S.Ct . 711

(1996). Here, had Burch requested a cognizable (and reasonable)

accommodation, and had he been a qualified individual with a

disability, the jury arguably would have been free to reject CocaCola’s proffered nondiscriminatory reason for termination. Burch

did not so request and was not so qualified. Coca-Cola is correct,

however, that a “second chance” or a plea for grace is not an

accommodation as contemplated by the ADA. S ee Siefkin

, 65 F.3d at

666 (“Siefkin is not asking for an accommodation; he is not asking

the Village to change anything. He is asking for another chance .

. . . But the ADA does not require this.”).

29 We therefore hold that the magistrate judge should have granted

Coca-Cola’s motion for judgment as a matter of law on Burch’s15 Coca-Cola, quoting W ells v. Da llas Indep. Sch. Dist. , 793

F.2d 679, 684 (5th Ci r. 1986), further argues for a new trial

because the size of the jury verdict——over $7 million prior to

remittitur——was “ ‘so exaggerated as to indicate bias, passion,

prejudice, corruption, or other improper moti ve.’” Although our

decision obviates the need to reach this issue, we note that even

had Burch’s case not suffered from the evidentiary deficiencies we

find dispositive, a jury’s verdict so grossly ex cessive as this

would most probably warrant a new trial under the standard set

forth in Wells

. Burch’s argument that because his counsel

requested $56 million from the jury——an amount argued to represent

one day of Coca-Cola’s net profit s per day the jury heard the

trial——the lower figure awarded “shows that [the jury] was not

unduly prejudiced in Burch’s favor” is not persuasive.

30 reasonable accommodation claim. 15

II. Intentional Discrimination

Under Title I of the ADA, an employer cannot discriminate

against a “qualified individual with a disability because of the

disability of such individual in regard to . . . the hiring,

advancement, or discharge of employees.” 42 U.S.C. § 12112(a). In

order to establish a prima facie case of intentional discrimination

under the ADA, this Circuit has required a plaintiff to present

either direct evidence of discrimination or show “‘(1) he or she

suffers from a disability; (2) he or she is qualified for the job;

(3) he or she was subject to an adverse employment action; and (4)

he or she was replaced by a non-disabled person or was treated less

favora bly than non-disabled employees.’” D aigle v. Liberty Life

Ins. Co.

, 70 F.3d 394, 396 (5th Cir. 1995); (citing McDonnell

Douglas Corp. v. Green , 93 S.Ct. 1817, 1824 (1973)).

At the close of Burch’s case, Coca-Cola moved for judgment as

a matter of law on Burch’s intentional discriminat ion claim

pu rsuant to Rule 50. Coca-Cola based its motion on the grounds16 The EEOC took no position on any other issue in this appeal.

17 There is some merit to Coca-Cola’s contention. Burch’s

counsel argued before the trial court not that Burch had to

demonstrate either that he had been replaced by a nondisabled

31 that Burch had not established that his alcoholism was a

disability, that Burch had de monstrated neither that he had been

replaced by a nonalcoholic employee nor that nonalcoholic employees

had been treated more favorably, and that Burch had not shown any

direct evidence of discriminatory motive on the part of Coca-Cola.

The magistrate judge granted Coca-Cola’s motion without stating

specific grounds.

Burch argues that the magistrate judge’s ruling was premised

on an erroneous understanding of the prima facie elements of an

intentional discrimination claim under the AD A. Specifically,

Burch contends that the magistrate judge granted Coca-Cola’s motion

because Burch had failed to present evidence that he had been

replaced by a someone who was not disabled (without permitting him

to demonstrat e disparate treatment). Such a position, Burch

argues, is contrary to our established caselaw se tting forth the

prima facie case for inte ntional discrimination under the ADA.

Amicus Curiae EEOC, which also understands the magistrate judge to

have precluded Burch from advancing dis parate treatment proof,

urges reversal of that ruling. 16

C oca-Cola argues that the magistrate judge’s ruli ng is

supportable on each of its three asserted grounds and that any

confusion as to the ruling is explainable by the responses given by

Burch’s counsel in argument on the motion. 17employee or was treated less favorably than nondisabled employees,

but rather that he was required to demonstrate neither

. Burch’s

counsel argued that, under the rule set forth in Doe v. Kohn Nast

& Graf, P.C.

, 862 F.Supp. 1310, 1318 & n.5 (E.D. Pa. 1994), the

fourth prong of the McDonnell Douglas standard was inapplicable in

a wrongful termination claim. Of course we have never so held and

Burch does not advance this argument on appeal

. See Daigle , 70

F.3d at 396.

32 Because Burch failed to establish that he suffered from a

disability as that term is defined in the ADA, and because such a

f ailure is fatal to his ADA intentional discrimination claim, we

affirm the magistrate judge’s grant of Coca-Cola’s Rule 50 motion

on that basis. Accordingly, we do not address whether Burch’s

disparate treatment evidence would have been sufficient to

establish the fourth element of his prima facie case.

The ADA defines “disability” alternatively. A plaintiff who

sues on an intentional discrimination theory can rely on any of the

three alternatives. The ADA provides:

“The term ‘disability’ means, with respect to an

individual--

(A) a physical or mental impairment that

substantially limits one or more of the major life

activities of such individual;

(B) a record of such an impairment; or

(C) being regarded as hav ing such an impairment.”

42 U.S.C. § 12102(2).

A. Substantially Limiting Impairment

For the reasons set forth above, see supra part I.A., we hold

that Burch failed to establi sh that his alcoholism ever

substantially l imited a major life activity, including the major

life activity of working.

B. Record of an Impairment

The ADA does not define “record of such an impairment,” but33

the regulations and the interpretive guidance promulgated by the

EEOC make clear that Burch, a t some point in the past, must have

met or been classified as meeting the standard set forth in section

12102(2)(A). The regulations provide:

“(k) Has a record of such impairment means has a history

of, or has been misclassified as having, a mental or physical impairment that substantially limits one or more

of the m ajor life activities

. ” 29 C.F.R. § 1630.2(k)

(1996) (second emphasis added).

The interpretive guidance also stresses that “[t]he impairment

indicated in the record m ust be an impairment that substantially

limits one or more of the individual’s major life activities.” 29

C.F.R. § 1630, App. (1996).

Burch’s argument that he had a record of an impairment when

Coc a-Cola fired him rests entirely on the assumption that his

alcoholism substantially limited a major life activity prior to his

treatment at Charter. We have already rejected this contention.

At most, Burch had a record of treatment for alcohol abuse and/or

alcoholism. That Burch’s alcoholism was severe enough to warrant

treatment does not establish a record of a disability. As we have

determined that Burch offered insufficient evidence establishing

that even his untreated alcoholism substantially limited any major

life activity, we fail to see how treatment for a nondisability

alters his status in any significant way. Accordingly, we hold

that Burch was not an individual with a record of an impairment

that substantially limited any major life activity un der section

12102(2)(B).

C. Regarded as Having an Impairment18 The record evidence does not show that negative reactions by

others toward known alcoholics substantially limited Burch in any

manner. Dr. Nace testified only that a “skidrow image” of

alcoholics has persisted. There was no evidence suggesting that

Coca-Cola employees embraced this view and we will not presume that

its prevalence is so pervasive.

34 “One is regarded as having a substantially limiting impairment

if the individual (1) has an impairment which is not substantially

limitin g but which the employer perceives as constituting a

substantially limiting impairment; (2) has an impairment which is

substantially limiting only because of th e attitudes of others

toward such an impairment; or (3) has no impairment at all but is

regarded by the employer as having a substantially li miting

impairment .” B ridges v. City of Bossier

, 92 F.3d 329, 332 (5th

Cir. 1996) (citing Dutcher

, 53 F.3d at 727-28 n.19), cert. denied

,

117 S.Ct. 770 (1997).

Whether Burch qualifies under the “regarded as” prong turns on

whether the evidence supports such a finding under the first or

third definition. 1 8 Both definitions require Coca-Cola to have

perceived Burch’s alcoholism as substantial ly limiting when, in

fact, it was not. Burch doe s not argue that Coca-Cola regarded

his alcoholism as disabling and such a finding is not supported by

the record. Coca-Cola unquestionably considered Burch to be an

alcohol abuser and concedes that alcohol consumption may have

induced the conduct for which it claimed Burch was fired. Burch’s

testimony, and that of Dr. Nace, would also support a jury finding

that Coca-Cola regarded Burch as suffering from alcoholism, as that

condition was defined at trial. But, as in our discussion of35

actual disabilities, we do find t he evidence insufficient to

support a finding that Coca-Cola regarded Burch as anything other

than what he actually was: an alcoholic whose alcoholism did not

substantially impair any major life activity, including the major

life activity of working.

We find guidance in our recent decision in City of Bossier

.

In City of Bossier

, we held that, in order for an employer to have

regarded an impairment as substantially limiting in the activity of

working, the employer mus t regard an individual as significantly

restricted in the ability to perform a class or a broad range of

jobs. 92 F.3d at 332. Burch produced no evidence that Coca-Cola

regarded him to be so limited.

Coca-Cola may have been concerned about Burch’s acknowledged

“inappropriate” behavior, about his short temper, and about a

specific instance of off-ho ur conduct, but Burch offered no

evidence that demonstrates Coca-Cola regarded his alco holism as

substantially limiting his ability to work or his other major life

activities. The record demonstrates that Coca-Cola was aware of

the favorable letters submitted by Drs. Nace and Matamoros at the

time of the termination decision. There was no evidence suggesting

that Coca-Cola either discredited Burch’s physicia ns’ view that

Burch ’s alcoholism would not affect his prospective ability to

refrain from inap propriate conduct or that its managers premised

their decision on such a position. But, significantly, even if

Coca-Cola had considered Burch’s alcoholism as an impediment to his

position with the company, that would not end our inquiry. Coca-36

Cola must have understood Burch’s alcoholism to preclude employment

in an entire class of jobs

. Assuming Coca-Cola regarded his

alcoholism as precluding employment as an area service manager with

direct reporting authority over approximately twenty employees and

a wide ge ographic area, such a conclusion falls far short of the

standard set forth in City of Bossier

. I d. at 334 (finding that an

impairment that precluded employment in any position “involving

routine exposure to extreme trauma” precluded only a “narrow range

of jobs”); see also Wooten v. Farmland Foods

, 58 F.3d 382, 386 (8th

Cir. 1995) (“restrictions against working with meat products in a

cold environment

. . . only appeared to prevent [plaintiff] from

performing a narrow range of meatpacking jobs”). The record is

silent as to any conception, or misconcep tion, held by Coca-Cola

that alcoholism, alone, renders an alcoholic employee substantially

impaired. Indeed, the fact that Coca-Cola had in place an employee

assistance program designed to assist employe es who may be

experienci ng problems with alcohol through referrals and

counseling weighs in favor of the opposite conclusion.

As there was insufficient evidence to establish that Coca-Cola

regarded Burc h as disabled, and because Burch did not otherwise

establish that he met the statutory definition of disabled, we hold

that Burch failed to meet the prima facie elements of intentional

discrimination under the ADA. Coca-Cola’s motion for judgment as

a matter of law was properly granted on Burch’s intentional

discrimination claim.

III. Defamation37

Burch appeals the magistrate judge’s grant of summary judgment

in favor of Coca-Cola on his Texas law d efamation claim. Burch

argues that two statements by Coca-Cola were defamatory. The first

was a statement by Charles Rose, an employee in Coca-Cola’s human

resources department, to Drake, Beam & Morin to the effect that

Burch had been terminated for violent and threatening behavior.

The second, from Cutshall to Smith, communicated a somewhat similar

message. The magistrate judge granted summary judgment on the

ground that these statements were opinion and, as such, were not

actionable under Texas law. Memorandum Order at 1 (N.D. Tex. Jun.

7, 1995) (citing Schauer v. Memorial Care Sys.

, 856 S.W.2d 437, 446

(Tex. App.--Houston 1993, no writ)).

Coca-Cola argues that summary judgment was appropriate because

both statemen ts were opinion and, alternatively, that Rose’s

statement to Drake, Beam & Morin was protected by the common

interest privilege. Burch argues that any privilege that Coca-Cola

might have had concerning the statements made to Drake was waived

by Cutshall’s statement to Smith, who was no longer affiliated with

Coca-Cola at the time the statement was made.

Finding the statement from Rose to Drake, Beam & Morin

protected by the common interest privilege, and finding that the

statement from Cutshall to Smith does not support a defamatory

meaning, we find no error in the magistrate judge’s grant of

summary judgment in favor of Coca-Cola.

“Slander is a defamatory statement orally communicated or

published to a third person without legal excuse.” H albert v. City38

of Sherman

, 33 F.3d 526, 530 (5th Cir. 1994); Randall’s Food Mkts,

Inc. v. Johnson

, 891 S.W.2d 640, 646 (Tex. 1995). “Accusations or

comments about an employee by his employer, made to a person having

an interest or duty in the matter to which the communication

relates, have a qualified privilege.” C ontiCommidity Servs., Inc.

v. Ragan , 63 F.3d 438, 442 (5th Cir. 1995) (citing Schauer

, 85 6

S.W.2d at 449), cert. denied

, 116 S.Ct. 1318 (1996). This

privilege extends to statements made in good faith by a former

employer to a prospective employer, see Pioneer Concrete of Texas,

Inc. v. Allen

, 858 S.W.2d 47, 49 (Tex. App.--Houston 1993, writ

denied), and those made to agencies engaged in placement services,

id. at 50. The privilege can be defeated by showing actual malice

or an abuse of the privilege. C ont iCommodity , 63 F.3d at 442;

Randall’s , 891 S.W.2d at 646.

Burch argues that, although Pioneer held that statements made

to placement agencies are covered by the conditional p rivilege,

Rose’s statement was not privileged because Drake, Beam & Morin was

not a placement firm but rather a firm specializing in employment

counseling

. We find the distinction insufficient to defeat the

privilege.

The privilege described in Pioneer was nothing more than a

practical application of Texas’s common-interest privilege, which

recognizes that public or private interests in the availability of

correct information can be of sufficient importance to require

protection of the honest communication of misinformation. P ioneer

,

858 S.W.2d at 50 (citing Kaplan v. Goodfried , 497 S.W.2d 101, 10519 Rose testified:

“Q. Was it your practice to tell the out-plac e ment

service the reason for an employee’s termination?

A. Yes.

Q. Why is that?

A. There is actually a number of reasons, but the main

reason is that it helps the out-place ment service do a

better job counseling the employe e to find their [sic]

next job.

. . . .

Q. Tell me how it would help Mr. Burch for Drake Beam

& Morin to k now that Coca-Cola had terminated him for

violent and threatening behavior?

A. A couple of different ways. Drake Beam has a number

of different kinds of counselors available to them. It

would help them select the person ——the person best

qualified and best suited to help him from their staff.

And secondly, they need to coach their clients on how to

39 (Tex. App.--Dallas 1973, no writ)). Accordingly, voluntary

communications, in addition to communications in re sponse to a

request, are privileged “‘if the relationship between the parties

is such that it is within generally accepted standards of decent

conduct to fu rnish the information for the protection of the

recipient.’” Id. (quoting Kaplan , 497 S.W.2d at 105-06).

The communication between Rose, a Coca-Cola human res ources

employee, and the offices of Drake, Beam & Morin were privileged

under Texas’s common-interest privilege. First, there was

uncontroverted testimony that the standard practice for Drake Beam

in particular, and among employme nt counseling firms in general,

was to utilize the reasons for an employee’s termination to aid in

that employee’s employment counseling preparation. Second, there

was no evidence suggesting that Rose acted with any purpose other

tha n to assist Burch’s search for subsequent employment. 1 9answer questions when they get into an interview

situation.

. . . .

Q. Have you ever given that type of information about

why an employee was discharged to Drake Beam in the past?

A. Yes.

Q. And relating to other employees?

A. Yes.

Q. Have you provided similar information to other outplacement counseling firms other than Drake Beam in other

cases?

A. Yes.

Q. In your experience, is that the type of information

that Drake Beam wanted to have?

A. Yes.

. . . .

Q. And why is that?

A. When I am on the phone with Drake Beam, they ask me why a person has been terminated.”

Rose’s affidavit stated:

“The information I provided to Drake Beam was of the type

customarily provided to an outplacement firm, and was

necessary to enable Drake Beam to effectively provide its

services to pla intiff. In accordance with our

established business relationship, this information was

considered by Coca-Cola and Drake Beam to be strictly

confidential.”

20 “‘Actual malice is not ill will; it is the making of a

statement with knowledge that it is false, or with reckless

disregard of whether it is true.’” Duffy v. Leading Edge Prods.,

Inc.

, 44 F.3d 308, 313 (5th Cir. 1995) (quoting Carr v. Brasher

, 776 S.W.2d 567, 571 (T ex. 1989)). The absence of an additional

investigation as to the t ruth or falsity of a statement has been

held insufficient to establish actual malice. I d. (citing Shearson

Lehman Hutton, Inc. v. Tucker

, 806 S.W.2d 914, 924 (Tex. App.--

Corpus Christi 1991, writ dismissed w.o.j.)).

40 Accordingly, we hold that the statements made by Rose to Drake Beam

w ere privileged and that Burch failed to establish that Rose,

a cting on behalf of Coca-Cola, acted with actual malice so as to

defeat the privileged nature of the statements. 2041

Burch also asserts that, even if Rose’s communication was

privileged, Cutshall’s communication of similar information to

Smith waived the privilege. We disagree. The common-interest

privilege is not waived by an unrelat ed communication of similar

information on a separate occasion to a former employee who may be

asked to provide a recommendation.

The conditional, common-interest privilege “remains intact as

long as communications pass only to persons having an interest or

duty in the matter to which the communications relate.” R andall’s

,

891 S.W.2d at 646; Reeves v. Western Co. of N. Am.

, 867 S.W.2d 385,

394 (Tex. App.--San Antonio 1993, writ denied); Perry Bros. Variety

Stores, Inc. v. Layton

, 25 S.W.2d 310 (Tex. Comm’n App. 1930,

jud gm’t adopted). Here, however, Burch does not contend that

Rose’s statement to Drake Beam was communicated, or overheard, by

any person not covered by the privilege. Rather, Burch argues that

a separate, second statement made on a different occasion, by a

different person, and to a different person, communicated at a

different time not established by the record, worked a waiver of

the privilege that had attached to the statement to Drake Beam.

Waiver occurs where the allegedly defamatory statement was made to

those outside the interest group. This was not established. See

Mitre v. Brooks Fashion Stores, Inc.

, 840 S.W.2d 612, 619 (Tex.

App.--1992, writ denied) (reversing summary judgment because

whether a flyer accusing plaintiffs of passing counte rfeit bills

“was published only to shop employees, or also to the general

public” was a fact issue relating to the privilege); Layton

, 2542

S.W.2d at 313 (“[T]he defamatory statements of Barr lost their

privileged character by reason of the fact that same were made in

a store open to the general public, and in the presence and hearing

of customers who were there

. . . and who had no interest in the

subject matter of the statements.”); see also Danawala v. Houston

Lighting & Power Co. , 14 F.3d 251, 255 (5th Cir. 1993) (finding

“secondary publications” by unauthorized gossip by co-workers did

not waive the privilege).

Burch also contends that some time after he was terminated

C utshall defamed him in a telephone conversation with Smith, who

was then employed by another company. The only evidence concerning

this conversation is Cutshall’s deposition testimony. Cutshall

there stated he called Smith in order to obtain a favorable

reference for Burch, believed that Smith asked him why Burch had

been terminated, and that he told Smith “what had been relayed to

me as to what had hap pened,” that he did n ot recall saying Burch

had engage d in “violent” behavior, but had “used the word

threatening behavior, menacing behavior toward another employee.”

Nothing more is shown concerning what Cutshall said to Smith.

Given the context of Cutshall’s conve rsation, and the undisputed

evidence that Burch, a physically imposing 6'5", 223 pounds, at the

least had become visibly and obviously very angry at the meeting

and mouthed hostile vulgarities to and pointed at a fellow employee

there, gesturing with his head for the two of them to go outside,

we conclu de that this mere snippet of testimony from Cutshall’s

deposition does not suffice to es tablish that Cutshall falsely43

defamed Burch.

Coca-Cola argues that “[i]t is well-s ettled Texas law that

mere statements of opinion are protected as free speech and cannot

form the basis of a cause of action for defamation.” Burch argues

that Coca-Col a’s reading of Texas law relies on an abandoned

adherence to Gertz v. Robert Welch, Inc.

, 94 S.Ct. 2997 (1974), and

that Texas now follows the view, expressed in Milkovich v. Lorain

Journal Co.

, 110 S.Ct. 2695 (1990), that statements of opinion may

be actionable if they imply an assertion of obj ective fact. We

find no inconsistency between the cases cited by Coca-Cola and

those cited by Burch. Texas case law plainly protects those

communications that are not objectifiably verifiable. S ee Carr v.

Brasher

, 776 S.W.2d 567; Simmons v. Ware

, 920 S.W.2d 438 (Tex.

App.--Amarillo 1996); Schuller v. Swan

, 911 S.W.2d 396 (Tex. App.--

Corpus Christi 1995); Schauer

, 856 S.W.2d 437; Sh earson Lehman

Hutton , 806 S.W.2d 914; Yiamouyiannis v. Thompson , 764 S.W.2d 338

(Tex. App.--1988, writ denied), cert. denied

, 110 S.Ct. 722 (1990).

“‘A statement is defamatory if the words tend to injure a

person’s reputation, exposing the person to public hatred,

contempt, ridicule, or financial injury.’” McKethan v. Texas Farm

Bureau

, 996 F.2d 734, 743 (5th Cir. 1993) (quoting Einhorn v.

LaChance

, 823 S.W.2d 405 , 410-11 (Tex. App.--Houston 1992, writ

dismissed w.o.j.) (holding statement that an employee was fired for

reasons relating “solely to work performance” was not defamatory

because it was nonspecific)), cert. denied , 114 S.Ct. 694 (1994).

“‘Whether the words are reasonably capable of the defamatory44

meaning the plaintiff attributed to them is a question of law for

the trial court.’” Id. (quoting Kelly v. Diocese of Corpus Christi

,

832 S.W.2d 88, 91 (Tex. App.--Corpus Christi 1992, writ refused)).

The allegedly defamatory statement mu st be considered in context

and in light of the circumstances surrounding its publication. I d.

We hold that, given the uncontroverted purpose of the

communication from Cutshall to Smith——to obtain a fav orable

recommendation for Burch——and the vague and general nature of the

statement made, as well as Burch’s admitted conduct at the meeting,

Cutshall’s statement was not falsely defamatory.

Cutshall testified that his remarks were made for the purpose

of obtaining a favorable recomme ndation. There was no evidence

that Cutshall provided any factual information to Smith other than

characterizing the nature of Burch’s terminat ion. Cutshall

testified that he told Smith “what had been relayed to me as to

what had happened.” Burch testified that Smith had reviewed his

prior performance favorably in evaluations and was aware of Burch’s

professional ability. Given Cutshall’s communicated purpose——to

obt a in a favorable recommendation——and in light of the

circumstances surrounding the statement, we find that no reasonable

jury could find that Cutshall’s remarks rose to the level of

actionable defamation under Texas law.

Conclusion

For the foregoing reasons, we affirm the m agistrate judge’s

grant of judgment as a matter of law on Burch’s ADA intentional

discrimination claim, affirm the grant of summary judgment on45

Bur ch’s defamation claim, and reverse the denial of Coca-Cola’s

motion for judgment as a matt er of law on Burch’s ADA reasonable

accommodation claim. Accordingly, the judgment of the trial court

is REVERSED and the cause is REMANDED with instructions to enter

judgment dismissing all of Burch’s claims against Coca-Cola.

AFFIRMED in part; and REVERSED and REMANDED with instructions